AA v Taxi Services Commission & Anor

AA v Taxi Services Commission & Anor - [2016] VCAT 579 - VCAT 2016 case summary — Zoe

In or around March to August 2000, the Applicant made an agreement with an undercover police officer to have his ex-de facto wife killed (hereinafter referred to as his wife).[4] On 1 November 2001, the Applicant was convicted of 'incite to murder'. The Applicant was sentenced to six years' imprisonment and released on parole after three and a half years.
The incitement offence followed other offences directed to his wife including a conviction in 1998 of recklessly causing injury; and other offences between 1998 and 2001 of stalking and multiple breaches of an intervention order.
On 7 January 2009, the Applicant applied for an assessment notice under the WWC Act and by application dated 27 January 2009 he applied for driver accreditation to drive commercial passenger vehicles under the Transport Act.
Incite to murder is a category 2 offence under the WWC Act. The Secretary considered the criteria in s 13(2)(a)-(j) of the WWC Act and determined to refuse the application for an assessment notice and issued a negative notice by letter dated 19 October 2009.
Incite to murder is classified as a category 1 offence within the Transport Act. In accordance with s 169(2)(b) of the Transport Act, refusal of driver accreditation by the Director of Transport is mandatory for category 1 offences. Accordingly, the Director of Transport refused the application by letter dated 28 May 2010.
On 10 November 2009 and 24 June 2010, the Applicant applied to the Tribunal for a review of the decision by the Secretary to issue the Negative Notice and for a review of the decision of the Director of Transport to refuse to issue driver accreditation, respectively.
The two proceedings were heard by a differently constituted Tribunal on 16, 17 and 23 November 2010 (the 2010 Hearing). A decision with reasons was handed down on 14 December 2010.[5] The Applicant was unsuccessful in both applications and the matters were dismissed.
The Applicant appealed the Tribunal's decisions to the Supreme Court of Victoria, citing various errors of law.[6] The appeal was upheld and the Tribunal's determination was set aside.
His Honour Justice Bell ordered that the Tribunal be reconstituted and that the matters be remitted to the Tribunal to be heard and determined again, either with or without the hearing of further evidence, as determined by the Tribunal.[7]
In making this fresh determination, the Tribunal has the benefit of all the evidence before it in the 2010 Hearing, including a copy of the transcript of those proceedings.[8] Due to the passage of time, the Tribunal determined that further evidence could be introduced, if the parties wished to do so.
The parties provided up-to-date expert psychiatric opinion. The Applicant also gave further oral evidence and called one additional lay witness. He also provided various additional documents in support, detailed in the reasons which follow.

[51]

Mr Joblin provided a report dated 19 April 2010 and an addendum report on 17 May 2010.[11] He was instructed by PILCH,[12] who assisted the Applicant in preparation for the 2010 Hearing. He has a Bachelors Degree and a Masters Degree in Psychology.[13] Mr Joblin interviewed the Applicant for between 60-90 minutes.[14]
The salient opinions contained in Mr Joblin's written reports were:
- (a) That the Applicant was 'extremely litigious', and he noted that the Applicant had provided an extremely lengthy document as a petition for mercy and that he steadfastly maintained his innocence to the incitement to murder offence. Mr Joblin 'held some concern about the Applicant's litigious presentation';
- (b) He disagreed with the opinion of Dr Carroll that the Applicant was narcissistic, histrionic, quarrelsome or contentious. He also disagreed that the Applicant could be properly diagnosed with a litigious paranoia disorder. Rather, he viewed the Applicant as a person who believed his rights had been breached;
- (c) He notes the offences for which he has appeared before courts related to the breakdown of his relationship with his ex-wife only. His relationship with his ex-wife is well and truly over and he no longer sees his daughter, therefore the context involved issues that are no longer relevant; and
- (d) The Applicant's criminal behaviour has not generalised to others in the community and he has not been involved with any inappropriate dealings with children;
During cross-examination, Mr Joblin was asked to make comments about two opinions provided by Dr Carroll. First, that the Applicant tends to externalise responsibility for his problems. Secondly, that the Applicant was presently a low risk because his energies were focussed on clearing his name - but if his legal challenges failed, then the risk to himself and others might increase.
Mr Joblin's view was that there was no doubt that the Applicant externalised responsibility for his problems. However, Mr Joblin did not think there was a link between the Applicant failing in his legal challenges and risk to himself and others.[15] He disagreed that violence would necessarily follow.[16]
He described the Applicant as a person determined to clear his name in the belief that he is innocent.[17] Although the Applicant was a litigious person, he did not believe that the Applicant was a vexatious litigant or that he could be diagnosed with litigious paranoia.[18]
Mr Joblin was unable to give an opinion about whether the Applicant was telling the truth about his wrongful conviction, but he did consider the information provided by the Applicant to be consistent and noted that the Applicant still held the same beliefs to date. He said he had 'a lot of difficulty' accepting the proposition that the Applicant was deluded.[19]
In re-examination, Applicant's Counsel recounted the various prior offences committed by the Applicant, for which he received convictions at the Magistrates' Court but did not appeal. Mr Joblin agreed with the proposition that it was inconsistent with a diagnosis of litigious paranoia for the Applicant not to have appealed any of the earlier convictions.[20] Under further cross-examination he accepted the proposition that litigious paranoia could potentially be triggered by a more serious sense of injustice notwithstanding the relatively less serious previous offences not acting as a trigger.[21]

[73]

The Applicant agrees that he met with a man on five occasions between March and August 2000. Four times at Footscray Park and one time in a car yard. On the first occasion, he said that he spoke with the operative for approximately two hours. It was not his expectation to discuss the murder of his ex-partner.
The Applicant's evidence was that that the operative encouraged and trapped him into engaging in a discussion about killing his ex-partner. Initially he did not intend to discuss that but when he did begin talking about her murder, he said it was a 'fantasy discussion'. In this context, the Applicant meant that the discussion was 'hypothetical' in nature.[39] He has consistently maintained that he never intended for the murder to actually take place.
The Applicant was arrested and charged with incite to murder on 22 August 2000. On 10 October 2011, a jury found the Applicant guilty of the charge. His Honour Flatman J described the offence as follows:
1. ... at the same time as you were negotiating access arrangements with [your wife] and attending the Family Court, you came into contact with an undercover police officer posing as a hit man. A series of meetings took place between you and the undercover operative between 23 March 2000 and 3 August 2000. The substance of the Crown case was contained in five meetings which took place between those dates and which were tape recorded and transcribed.
2. In broad terms, they disclose that you wanted to have your wife killed because you felt that you had no choice. You demonstrated hostility towards her because you believed she had cost you a great deal of money, she had framed you, put you before the courts, and turned your daughter against you.
3. You said that you had been looking at killing her for two to three years and had been put in touch with some Italians two and half years earlier who might do the job. The price for killing your wife was $10,000. During the course of the meetings you discussed various methods for her disposal. Although your primary concern was that she disappear without any suspicion falling on you, you did discuss alternative methods, albeit at the request of the undercover operative. These methods included disappearance, suicide with apology, and the suggestion that a condom obtained from a brothel with foreign semen in it be planted at the scene to give the impression of a rape by a stranger.
4. You also took practical steps to engage the service of the undercover operative. At the second meeting on 6 April 2000, you gave him a casino chip to the value of $1,000. Later, at the third meeting of 5 May 2000, you paid a further $200 cash. You took ineffective steps to raise money by dealing in drugs with another undercover operative who posed as a drug dealer. At that second meeting, you provided information as to the address, routine and movements of [your wife] which facilitated her identification and the taking of photographs.

[91]

The Commission pointed to the Applicant's history of offending: the 'recklessly cause injury', 'stalk another person'; 'breach intervention order' and ultimately the index offence being the incitement to have his wife killed. The Commission say the offences are indicative of a 'profound defect in the Applicant's character'.[55]
The relevant question is, notwithstanding the prior serious offending directed towards his wife, does such improper conduct, 16 years later, have any bearing on his suitability to drive commercial passenger vehicles?
I accept that actions taken in a person's private capacity may support a finding that a person is not a fit and proper person, depending on its seriousness and relevance to the tasks to be provided. However, the Applicant is applying for accreditation for a licence to drive commercial vehicles as opposed to say, practising in the legal or medical profession, where a significantly higher standard would be expected, given the higher level of trust and responsibility involved in those professions.
In my view, the cases relied upon by the Commission to support their submission, that the Applicant is unsuitable, are readily distinguished from the present case.
The Commission referred to the Tribunal's decision in El Sayed in which accreditation was refused to a driver who was found guilty of assault after spitting in the face of a post-office worker. It was noted that drivers' activities in buses or taxis will also undoubtedly involve carrying unruly, difficult, aggressive, cognitively-impaired or intoxicated passengers and that an accredited driver needs to be able to calm down such passengers, not aggravate them.[56] The Tribunal found that El Sayed was unsuitable because, amongst other things, he had an unresolved anger management problem.
At the 2010 hearing, it was similarly suggested that the Applicant had an anger management problem that would render him unsuitable to provide the service. The Applicant was asked about whether he still harbours any anger. He gave frank evidence that he remained angry with specific police officers for their part in the alleged conspiracy against him. However, he was not angry at the police in general. He was also still angry at the Judge who he says played the 'chess game' against him.[57]
The Applicant further said that he was no longer angry with his ex-partner and he regards the issues with her to be in the past.[58] He said he has gotten back to his feet after being arrested and spending time in jail. His life is better now than it was back then.[59] The Applicant confirmed that he has not hurt anyone, including himself, while he was in jail. He was specifically asked whether he had hurt anybody after he failed to quash his conviction in the Court of Appeal and when special leave to the High Court was refused. He was also asked whether he would hurt anybody if his 'petition for mercy' to the Attorney-General was not successful. He responded 'No. I'm going to fight it according to law - within the law, not with doing anything unlawful'.[60]
He was further asked what would happen if he ran out of legal options, and he responded 'I just got to cope with it... get on with my life. I'm just fighting for truth and justice'.[61]
The Tribunal may be cautious to simply accept, at face value, the Applicant's evidence that he does not have an anger management problem and that he will act always within the law. However, such evidence gains credibility by the reality of his behaviour since his release from custody. The Applicant's clean record since his incarceration strongly supports his contention that his efforts to clear his name will remain lawful. I do not accept that the Applicant has any unresolved anger management problems that would render him unfit to handle difficult passengers, as was the concern in El Sayed.
The matter of El Sayed is also distinguishable in other relevant respects. There has been a passage of 15 years since the Applicant's last offending, whereas El Sayed's conduct occurred only 18 months prior to the hearing of his application. El Sayed's offending was generalised to a member of the public, whereas the Applicant's violent offences only ever occurred in the confines of his relationship breakdown.
In Director of Public Transport v XFJ,[62] His Honour Justice Ross concluded that public confidence and community expectations may be taken into account when determining whether an applicant is 'suitable in other respects' but that the Tribunal is not bound to do so.[63] His Honour described the test as being vague and subjective:[64]

[95]

The Tribunal must be careful not to endorse a vague and subjective process of gauging community expectations and public confidence in an industry when determining whether a person is suitable in other respects. Public opinion on matters such as the present will often be formed without full knowledge of the facts and circumstances, and it can easily be swayed by sensationalist and sub-standard journalism.[66] Lay members of the general public will rarely take the time to read and consider legal judgments in their entirety. As noted by DP Macnamara (as he then was), in XFJ, the Tribunal must consider the mind of the reasonable person, as opposed to wild prejudice.[67]
The Commission also point to Dr Glowinski's finding that the Applicant has querulous and vexatious behaviours and that such behavioural traits are inconsistent with a fit and proper person because the Applicant cannot be relied on to submit to the authority of the regulator.[68] In my view, the submission is too broad as it does not identify what it is that the Applicant would not be willing to submit to. The Transport Act is primarily concerned about the safety and comfort of passengers, not whether a licensed person is a cooperative employee.
The Commission also submitted that the Applicant has created a conspiracy in which he is the victim of a miscarriage of justice by a biased legal system. He has not been 'jolted into reality' by each unsuccessful appeal, but rather has added them to the conspiracy. The Commission referred the Tribunal to the case of O'Hara v Victorian Institute of Teaching.[69]
O'Hara was convicted after producing fake documents and attempting to sell two pistols to undercover police officers. With the aid of his false documents, O'Hara claimed he was the son of Hitler and used falsified documents to claim that one of the pistols belonged to Hitler and the other pistol belonged to Hitler's mistress, Eva Braun. O'Hara did not attend the Tribunal but gave sworn affidavits stating that he was an Israeli intelligence agent deployed with Mossad, who now devoted his life to flushing out terrorists.
While the Applicant does put forward conspiracy theories about how he came to be convicted for incitement to murder, his theories are clearly not on par with the bizarre and deluded claims made by O'Hara.
I also note the decision of Orchard v Medical Board of Australia.[70] In Orchard's case, the Board submitted that correspondence sent by Dr Orchard to the Board, the Tribunal and the Premier of Victoria, which alleged corruption, a witch hunt and various other things, was so intemperate and outrageous as to indicate that he was not a fit and proper person to practice medicine.[71] The Tribunal described the correspondence as 'diatribe, replete with outlandish accusations, threats, withering criticism of individuals, self-justification and grandiose tangential asides'.[72] Nevertheless, the Tribunal did not consider such conduct rendered Dr Orchard not fit and proper:[73]
1. ...we do not believe this conduct renders him not fit and proper. We should be cautious before making a finding of not fit and proper in relation to conduct which is separate from the carrying out of Dr Orchard's medical practice. We do not regard Dr Orchard's correspondence as being particularly closely related to the conduct of his practice in the relevant sense. Of course, the subject matter of his correspondence arises out of, and relates to the treatment of psychiatric patients. But it is more properly characterised for present purposes as advocacy for his own position. The Board's case under this head - fit and proper - does not relate to his treatment of any patient(s). It is all about the intemperate expression of his views in correspondence. As such it is more appropriately categorised as conduct engaged in outside the practise of his profession.
2. The authorities referred to above make it clear that for such personal conduct to render a practitioner not a fit and proper person to practice, it must be of a very serious nature, such that it has a direct bearing on his fitness to practise. We certainly do not condone Dr Orchard's correspondence. Quite the contrary. It was well out of keeping with what would be expected of a senior member of the profession. Here, however, we find that Dr Orchard's correspondence does not go so far as to indicate a defect in character so profound as to affect his suitability to practise...
The Applicant's written submissions at times read as diatribes, similar to Orchard. However, I agree with the reasoning in Orchard that the written materials filed in the context of Applicant's legal disputes lacks any meaningful connection to his suitability to drive commercial passenger vehicles.
I am satisfied that the Applicant is suitable in other respects to provide the service.

[109]

As noted by Applicant's Counsel at the original hearing, the Tribunal has the benefit in this case of the trial Judge's sentencing remarks. The sentencing remarks briefly outline the Applicant's history, including the breakdown of his relationship with his former wife and various encounters with the law (which I have documented above) leading up to the incitement to murder offence.
As His Honour stated, the outline of conversations between the Applicant and the undercover police operative hardly painted the Applicant in an honourable light.[81] Nevertheless, His Honour made special mention of a number of significant factors which do weigh in the Applicant's favour, including:
1. ... There is some strength however in the submission put by Miss Dixon that there was an element of ambivalence on your part. Even in the course of the conversations with the undercover operative, you acknowledged that in one sense what you were doing was quite wrong. Finally, in the last conversation, you expressed surprise that you had joined the ranks of criminals.
2. I also accept that the history of the relationship discloses a devotion to your daughter and an attempt by you, particularly in the latter stages, to try and establish amicable dealings with your ex-defacto wife. This was reflected in your conversation with the undercover operative at the fourth meeting on 24 May 2000 when you indicated that you were genuinely trying to get back with [your wife].
3. I also accept that there was an element of naivety in your dealings both with this undercover operative and the undercover operative involved in drug trafficking.
4. Your inability to organise the appropriate finances between March 2000 and August 2000 does raise a question as to whether you would have ever been able to put such a contract into effect. I also think there is strength in the comments made by Mr Gibson on behalf of the Crown that it was obvious that you were in a heightened emotional state throughout much of the period and that you were probably depressed. Your tone of voice in many of the tapes is a sad one.
5. ... Ms Dixon submitted that your involvement in criminal activity had proved disastrous at every stage and that you have had time to reflect on your future. I am told that you have learnt a salutary lesson and will not pose any threat to your wife or others in future.
The seriousness of the offence is somewhat tempered by surrounding circumstances, as set out by His Honour Flatman J. In his final analysis, His Honour considered three matters particularly relevant to sentencing:
1. First, given that it is an incitement to murder, arising from the breakdown of a domestic relationship, weight has to be given to the element of general deterrence and there is no doubt that an immediate custodial sentence is appropriate. You have placed your wife in an understandable situation of fear for her future, (that being apparent from [the wife's] Victim Impact Statement). Similarly, in a way not intended at all by you, you have made life more difficult for your daughter. It is totally unacceptable in a civilised community that anyone should be prepared to kill in order to get their own way.

[112]

In all the circumstances, I impose a sentence of six years imprisonment and I fix a non-parole period of three and a half years before being eligible for parole. I declare that you have spent 437 days in custody which shall be reckoned as part of your sentence.
There is no doubt that incitement to murder is a very serious offence and that is the starting point from which to consider this criteria. As the Commission noted, the offence was also committed following a number of violent encounters and an incident of stalking.[82]
The Tribunal may also have regard to His Honour's sentencing remarks which shed some light on the Applicant's state of mind and add context to the offending. His Honour noted the Applicant's ambivalence, sad tone and suggested that the Applicant was likely depressed, ultimately concluding that 'equivocation, naivety, and lack of means available' distinguished this case from more serious examples of incitement to murder.
The Commission submitted that there is no direct relevance between the offence and the services to be provided by an accredited driver. However, it was also submitted that it is relevant that the Applicant's offence was a violent and extreme reaction to perceived threats against him by the victim.[83] It was submitted that the Applicant may face different, but still provocative, emotionally-charged and challenging situations in the context of driving a commercial passenger vehicle. A resort to violence in the face of a perceived threat and to blaming the other person, is inconsistent with the behaviour an accredited driver must display.[84]
In my view, it is necessary to distinguish the offences. The offence of incitement to murder, and the complex relationship breakdown which accompanied that offence, is completely remote from any situation the Applicant is going to encounter driving buses or taxis. Similarly, the offences of stalking and breach of intervention orders have no nexus to driving taxis or buses.
The offence which may have some relevance is the assault against the Applicant's wife on 14 June 1997, described above. In this situation the Applicant admits he lost his temper and reacted violently. The Applicant may well have the misfortune of meeting demanding or violent passengers while driving. To this end, it is arguable that the Applicant might respond in a similarly violent manner towards such passengers. Dr Glowinski flagged this risk in his report where he stated that 'there are scenarios which can be plausibly considered in which AA might react to a perceived slight from a passenger'.[85]
On closer analysis, it is clear that the recklessly cause injury offence was precipitated by a unique set of circumstances beyond a mere slight from his wife. As I have set out above, the Applicant had an argument with his wife about babysitting arrangements. The Applicant was not violent to his wife on the first occasion. The police attended and told the Applicant to return his key and leave the house, effectively making him homeless. He then returned to the house after wandering in the streets aimlessly for a number of hours. A further argument ensued, on this occasion the Applicant did respond violently. The events leading up to the Applicant, in his own words, losing control, are much more significant and cumulative than a simple insult or disrespectful comment from a passenger on a bus.
I also note that the recklessly cause injury offence occurred over 18 years ago, and once again, in the context of a domestic relationship. In a taxi or bus driving situation, passengers would usually be strangers and any interactions would be superficial and transient. I have no evidence before me to suggest that the Applicant has any violent history towards members of the public generally.

[131]

The document then sets out the Applicant's long list of perceived injustices. The Applicant believes he was the victim of police corruption and that he was coerced behind the scenes (where there were no recordings taken) into inciting the undercover operative to murder his wife. He further says that he was denied adequate time to prepare his defence, denied natural justice, denied a gender balanced jury and denied his human rights to a fair trial by a competent and impartial court. He also states that the Court of Appeal rejected his appeal because they 'loathed him' for filing submissions which were critical of the trial judge. The list of perceived injustices continues.
It is not necessary for the Tribunal to wade into the merits of the Applicant's long list of grievances with the criminal justice system. The charge, the conviction, the unsuccessful appeal to the Court of Appeal and the High Court's refusal to grant special leave to appeal are all matters of public record. It is not the role of the Tribunal to review findings of higher courts, the findings of which are binding on this Tribunal. Nonetheless, significant leeway was given to the Applicant to give his version of events. As a consequence, the Tribunal has been better informed of the Applicant's state of mind when he openly declares that he has no remorse.
It is clear that the Applicant is not remorseful for the incitement to murder offence for the simple reason that he cannot be remorseful for a crime he ardently believes he did not commit. Mr Joblin explained during crossexamination that concepts of responsibility, remorse and contrition can only be discussed in the context of the perpetrator having acknowledged the commission of an offence. When a person maintains their innocence, they cannot then say they are sorry and express remorse.[95] Mr Joblin states that 'AA believes he is innocent of the offence, so these matters can't be an issue'.[96]
Although not remorseful, the Applicant has expressed an understanding that inciting murder is very serious and wrong, and he has expressed an understanding of the consequences which flowed to his daughter and wife.[97] He described incitement to murder as 'horrible'.[98] He cannot come to terms in his own mind that he has been found guilty because he believes that he never formed an intention to have his wife killed, even though he openly discussed the topic with the undercover officers on a number of occasions. For the avoidance of doubt, I do not accept the Applicant's position that he is not guilty of the incitement to murder offence.
In relation to the 'recklessly cause injury' offence, he expressed shame for choking his wife and admits that he lost control.[99] Even though he says he was provoked by his wife's initial assault against him, which could be interpreted as an attempt to minimise the significance of the offence, he has still admitted that his violent retaliation was still not justified.[100] He has consistently admitted and acknowledged that the retaliation on his wife was unjustified.[101] It would be a different matter if he were to say words to the effect that she deserved it. He has not expressed any such sentiment.
In my view, the likelihood of the Applicant inciting the murder of another person is virtually nil. The offence was the final act in a fraught domestic relationship. It is clear that the Applicant has moved on from that episode and sought to rebuild his life. He has effectively given up on reconnecting with his now ex-defacto wife and accepted that his daughter is no longer in his life.

[163]

Mr Panayi directed the Tribunal to refer to the original decision of this Tribunal,[121] where Aird DP stated 'There is very little evidence about the Applicant's behaviour since he committed the offence' and 'there is no evidence before me about any involvement or interaction with children'. It is the Secretary's submission that the Applicant's application has not been materially advanced since the 2010 Hearing in relation to this consideration.
Mr Panayi further submitted that the Applicant has not provided any evidence of his child related skills, his job hunting or what he has been doing with his life. Nor has he provided any evidence regarding community engagement, volunteering or a letter for a prospective volunteer organisation or employer. Nobody from his family or his circle of friends were called to give evidence. There is no information about his living arrangements or job performance.[122]
I must respectfully disagree with the Tribunal's earlier finding, that that there was very little evidence about the Applicant's behaviour since he committed the offence available at the 2010 Hearing. In my view, there was a large amount of information available, which I have summarised below.
As I have already noted above, since the Applicant committed the offence he was granted parole at the earliest opportunity and he has not had any involvement with the criminal justice system since. After 15 years, this is a factor that weighs strongly in his favour. At the 2010 hearing, some 10 years had passed since the Applicant committed the offence, a further 5 years have now passed. This has at least advanced the Applicant's position somewhat since the last hearing.
When considering this criteria, the Tribunal must bear in mind the unusual chronology of this matter. When this matter was remitted to the Tribunal for hearing by a differently constituted Tribunal, the parties were given an option to rely on previous materials or produce new evidence. The parties agreed to rely on previously filed materials but also took the opportunity to obtain further expert reports. The Applicant also provided one additional reference from Mr Dean Mason and a petition in support of his application. It would be unfair to criticise the Applicant for not providing additional information about his activities since the offending specifically for the purpose of this hearing, in circumstances where he has already provided a significant amount of that nature of information at the 2010 Hearing. He is still entitled to rely on the evidence previously produced.
In response to Mr Panayi's criticism that the Applicant has not provided any information about his child related skills (akin to the Commission's submission that the Applicant has not demonstrated good behaviour driving taxis or buses since release from prison) it is very difficult for a person in the Applicant's position to demonstrate that he has skills with children unless and until he is given an Assessment Notice in the first instance. There is also an added difficulty in the present case because the Applicant has no specific desire to work with children, his true desire is to drive tour buses carrying Chinese visitors, some of which may have children on board. The assessment notice is merely ancillary to that goal.
In my view, the Tribunal formed an overly critical and dismissive view of the Applicant's references provided before the 2010 Hearing.[123] There was too much emphasis on what the referees did or did not know about the Applicant's criminal past. There is a clear distinction that needs to be made as follows.
If a referee concludes that an applicant is not a risk to children, but it is evident that the referee has incomplete or no knowledge of the applicant's criminal past, then clearly the opinion can be given little or no weight - because the opinion is not fully informed.
However, the weight which may be given to factual information that a referee provides about a person's activities and behaviours, which they have personally witnessed, is not diminished or undermined just because that person is not fully appraised of the Applicant's criminal past.
For example, many applicants will provide lay witness statements from friends or colleagues which contain a combination of factual statements about the applicant's activities, and a deductive conclusion from that witness that the applicant is therefore no risk to children. In that situation, the Tribunal can have no confidence in the conclusion that the applicant is no risk if that witness is not fully aware of the applicant's criminal history.[124] However, the Tribunal can still have full regard to the witness's evidence in relation to the applicant's activities.
In any event, a lay witness's opinion as to whether or not a person is an ongoing risk begins to converge into the realm of evidence one might expect from an expert. Such evidence would need to be treated cautiously even if the witness was fully appraised.

[166]

Margaret Yung, a social worker at Doutta Galla Community Health provided two letters. The first letter dated 30 April 2009 stated that she provided counselling services to the Applicant from June to December 2004. A further letter, in response to a request for further information from the Working with Children Check Unit, dated 30 June 2009 was also provided.
Ms Yung wrote that she provided the Applicant with counselling to assist with his 'depression issue and direction for his life'.[128] There was a total of six sessions, each session took 60-90 minutes and it seems the initial consultation on 23 June 2004 took approximately 4 hours. Ms Yung stated that the cognitive behavioural approach worked well and she was able to successfully focus the Applicant's energies into his new direction in life.[129]
The Applicant also provided written references from three friends. Mr Gui Dong Cao, a pastor from the local church; Mr Yading Feng, a long term friend and Ms Xiao Shen, a close female friend who he met and provided assistance to in 2006 when she was a new immigrant to Australia. Each of these witnesses portray the Applicant in an honourable light, noting that he donated blood after the Black Saturday fires and donated money to assist relief efforts after the Wenchuan earthquake in China. I do not give any weight to opinions expressed by these witnesses that the Applicant would be no risk to children as they are not experts and I cannot be satisfied that they are fully aware of the Applicant's history.
However, the opinions expressed in these references are all consistent with the Applicant undertaking relevant rehabilitation and vocational training, and otherwise displaying positive community attitudes.
Ms Xiao Shen gave oral evidence at the 2010 Hearing. Ms Shen met the Applicant at the Adult Migrant English Service, a service which provides information to new migrants. She was browsing the internet when she met the Applicant and a friendship developed. The precise nature of the relationship was difficult to ascertain from the witness. Clearly she trusted him and relied on him for assistance in adapting to life in Australia. She said they met weekly or fortnightly, had dinner together and spoke on the telephone. She stopped short of describing the relationship as romantic, referred to him as a friend whom she trusted, she did not rule out the possibility of a sexual relationship in the future.[130] The Applicant on the other hand, referred to the nature of the relationship to be 'loving'[131] and akin to a platonic boyfriend-girlfriend relationship.[132]
The Working with Children Check Unit telephoned Mr Cao seeking further information on 17 August 2009. In relation to the referee's observations about the Applicant's interaction with children the officer recorded Mr Cao as stating ...'...He is generally alright but he has a bad temper'. When asked if he thought the Applicant was suitable to work with children, he replied 'he will be alright working with children. He had problems with adults, hot tempered but normally he is alright'. The officer asked 'why do you say that he had a bad temper' and Mr Cao says 'he drove a taxi for many years. There was someone who didn't want to give him money and wanted to get away and he fought him. But normally he is okay'.
Clearly Mr Cao was not a passenger in the taxi during the said incidents that he is referring to on the telephone. In my view, it is apparent that Mr Cao is simply making reference to information which he has learned about the Applicant's past from the Applicant himself, rather than giving evidence that he has personally witnessed the Applicant being hot tempered or having problems with other adults. Mr Panayi was critical of the Applicant for not calling Mr Cao to give evidence to explain his comments.[133] Yet one could be equally critical of the Respondents, as model litigants, for the same reason.
Melaki Amurat was an employment consultant at Matchworks Employment Services. Ms Amurat gave oral evidence at the 2010 Hearing. She worked with the Applicant for a period of six months prior to giving evidence (on 17 November 2010) and successfully found employment for the Applicant as a delivery driver for Cantru Meat World. The Applicant had been working in that role for three months, 8 hours per week.
Ms Amurat also gave evidence to the effect that Matchworks Employment Services had received positive feedback about the Applicant's performance in that role. Ms Amurat's evidence was not contested. The Applicant clarified that he worked in this role from July 2010 until sometime in 2011 and received a modest $14 per hour.[134] He still received Centrelink benefits and ankle problems made the physical work of delivering meat difficult.[135] He anticipated earning $24-25 per hour driving a bus.

[171]

Having considered the required matters above in s 13(2), the Tribunal is required to make a finding as to whether granting an assessment notice is an unjustifiable risk to the safety of children. The test is expressed in terms of 'unjustifiable risk', not a, any or no risk.
The engagement of human rights and the proper application of the unjustifiable risk test was analysed in depth by His Honour Justice Bell.[139] His Honour considered the competing rights of children from protection of harm and the rights of individuals to work, and to work in their chosen field.[140] His Honour concludes that the concept of 'unjustifiable risk' incorporates notions of weighing, balancing and proportionality, taking into account the matters in s 13(2).
In the present case, I am satisfied that granting an assessment notice will not pose an unjustifiable risk to the safety of children. In my view, the risk of harm to children is no greater that an ordinary person who has not committed any offending. Borrowing from Bell J's useful summary, I note the following indications that the Applicant's risk to children is minimal:[141]
- the offences which AA had committed, including incitement to murder, did not involve children and occurred solely in the context of a fraught domestic relationship breakdown;
- there is no evidence that AA had harmed children in the past or that he was at risk of harming children as such;
- in sentencing AA for incitement to murder, Flatman J took many matters in mitigation into account, including AA's state of mind at the time, and expressed a positive view as to his prospects of rehabilitation;
- AA was released from imprisonment on parole on 29 January 2004, whilst on parole completed a number of rehabilitation programs including for mental ill-health and gambling addiction, and was successfully discharged from parole on 28 July 2006;
- AA had committed no further offences since committing the offence of incitement to murder in 2001 and had not been in trouble with the police since being discharged from, parole;
- the expert psychological evidence was that AA had not been and was not likely to be involved in inappropriate dealings with children;

[174]

Bell J also summarised the factors which the Secretary raised as evidencing that the risk would not be small:
- although AA committed the offences between 1997 and 2001 more than 10 years earlier [now 15 years earlier], the offence of incitement to murder which he committed in 2001 was very serious, as was the offence of causing serious injury recklessly, which he committed in 1997;
- although there was evidence that AA was not a risk to the safety of children as such, there was evidence, including expert psychological evidence, that he had anger management problems which might cause him to react violently in situations of stress;
- although the sentencing remarks of Flatman J referred positively to ZZ's prospects of rehabilitation, his Honour also emphasised the seriousness of the crime, for which AA received a significant sentence of imprisonment;
- although AA had successfully completed his parole and had not been involved in further offending, there was limited evidence of his activities since being released from prison which, according to the tribunal's finding, made it impossible to determine his level of rehabilitation;
- although several witnesses had given written character evidence on AA's behalf, they were not fully aware of his criminal convictions and the extent and violent nature of some of the offences;
- although AA's woman friend gave evidence on his behalf, she used weaker language to describe the nature of their relationship than he did;
- although the psychological evidence was generally positive, some of the opinions were qualified by reference to the possibility that AA's inability to control his anger might lead him to react violently in frustrating circumstances and that his earlier offending was indicative of anger management problems;
- although AA had expressed shame about his past offending, he was continuing to protest his innocence and was making serious allegations of bias, dishonesty, conspiracy and incompetence in the legal system.
I have considered all of the above. As noted, I do not consider there to be any concern regarding the Applicant's anger management or control issues. I disagree that there is insufficient information available to the Tribunal about the Applicant's rehabilitation. I have also detailed my views regarding the Applicant's lack of insight and remorse, which I have cautiously concluded do not translate to any significant threat of violence, even less so does it represent a risk to children.
It follows that I do not consider the Applicant to be unjustifiable risk to the safety of children.

[181]

The above analysis sequentially considered each of the applicable tests or 'hurdles' which the Applicant must satisfy to obtain accreditation and an assessment notice. I have reviewed the material before me in light of each of the statutory tests and ultimately I have formed the view, on each occasion, that the Applicant has satisfied the applicable test.
I acknowledge that the most concerning aspect of the Applicant's application is his express lack of remorse for inciting the murder of his wife. He does not agree that he is criminally liable. That is the position that the Applicant has consistently maintained since his arrest in 2001 and until now. I have no doubt that the Applicant will continue to maintain his innocence and justify, perhaps primarily to himself, how it is that he came to be convicted for such a serious crime.
Although there is no shortage of authorities in which a lack of remorse has caused the Tribunal to find that a person is an unjustifiable risk, each case must be considered on its merits. Lack of remorse is a highly relevant consideration when determining whether there is unjustifiable risk of repeat or similar offending, but it is not the only factor.
I have given significant weight to the passage of time since the offending took place, and the clean record that the Applicant has maintained during that period. The Applicant has had no involvement with the law other than his failed legal appeals - which he is entitled to pursue. The clean record is also inconsistent with the suggestion of continuing anger management problems.
The preponderance of expert evidence is also in the Applicant's favour. Dr Carroll's report of June 2004 suggested that the Applicant was low risk, but that the risk might increase if the Applicant failed in his quest to clear his name. It is now 12 years since Dr Carroll's report and there have been multiple failed appeals and further protestations of innocence. Nonetheless, the potential risk flagged by Dr Carroll has not eventuated. Nor did the Applicant develop a depressive illness.[147]
Dr Remy Glowinski's 2015 report suggests there might be future risk of violence but he considered it more likely that any violence committed would be towards individuals well known to him, and that there was 'little obvious connection between these factors and a risk of violence if working as a taxi or bus driver'.[148] I have considered Dr Glowinski's suggestion that the Applicant might react from a slight from a passenger, but I have concluded that the Applicant does not have any anger management issue, and that the Applicant's violent reaction in the past, resulting in the offence of 'recklessly cause injury' arose from circumstances which are not analogous to a slight from a passenger.
Dr Byron Rigby's 2015 also concludes that the Applicant is of no greater risk than would be estimated in any other eligible person if he was granted a licence. I concur with that view. I also do not consider the Applicant to have any significant risk of responding violently to a slight or other provocation from a child.
For all of the reasons above, the Applicant is successful in both applications and I have ordered the Commission to issue a driver accreditation, and for the Secretary to issue the Applicant with an assessment notice.

At a glance

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Judgment (261 paragraphs)

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Legislation Cited (8)

Cases Cited (7)

AA v Taxi Services Commission & Anor (Review and Regulation) [2016] VCAT 579 (14 April 2016)